Getting away with torture

The contents remain classified, and therefore full details cannot be disclosed at present. However, what can be said is that the report only raises more questions, and certainly does not clear any US official of any wrongdoing, contrary to the claims of the Howard and now Gillard governments.

In an affidavit, David Hicks details the beatings that took place on transit to Guantanamo, the worst of which took place in Pasni, Pakistan. He details being spat on, and kicked and hit with rifle buts. After the beatings in Pasni, Hicks was transported to the USS Pelilieu where he was interviewed by Australian officials, including the AFP and ASIO. Hicks says he then first detailed his treatment at the hands of the US and its agents. The contents of this interview have also never been made public - the transcript was not entered into evidence in the recent proceeds of crime case against Hicks that was dropped by the Commonwealth Department of Public Prosecutions due to lack of evidence that a crime was committed.

Hicks also detailed his ill-treatment and torture to Australian officials on many other occasions over the years of his detention in Guantánamo. One such occasion was during the NCIS investigation interview which was ordered in response to the photos of Abu Ghraib being released. Dan Mori, Hicks' former lawyer, has stated that "an Australian official was present, and Mr Hicks went through the issues of him being assaulted as part of the US investigation, and there was an Australian official present during the entire interview."

In 2005 Hicks met with and provided a letter to Australian consular official John McAnulty, outlining his treatment in Guantanamo. Hicks described being chained to the floor for so long that he had to urinate on himself, and the use of "noise machines" - either bladeless chainsaw engines revving constantly or loud music or sounds being sent through the camps.

After reporting these issues to McAnulty, Hicks was moved to a camp designated for reprimanding detainees; Hicks and his lawyers saw this as a punishment for raising concerns over his treatment to Australian officials. Hicks' letter also has never been released publicly.

Heavily redacted documents from Department of Foreign Affairs and Trade, obtained through a Freedom Of Information request, include a Record of Conversation between Hicks' lawyer and Downer on 19 February 2007. Others present included Downer's then Chief of Staff Chris Kenny, and adviser Angela Macdonald. Downer is recorded as saying:

…he had varying degrees of worry for people held overseas….the case had progressed beyond the point where the Australian government could simply ask for Mr Hicks' return; but a plea bargain option might perhaps get him back into Australia more quickly than proceeding with a full hearing….that while lawyers might take the view that the implications of a plea bargain would be to give credence to the military commission process…surely the best thing for Mr Hicks would be to get out of Guantanamo Bay…the government's position remained that he should face charges. If a trial could be expedited or Mr Hicks accepted a plea bargain - that would be a win/win…

Howard certainly did not allude to this "win/win" proposition when quizzed on a television program in 2012, and obviously any win/win scenario was unconcerned with natural justice or due process for Hicks. Following the recent Hamdan decision that confirmed that the charge "material support for terrorism" was not a valid war crime, Hicks has publicly stated that all he wants is for an investigation into his case.

The Australian government has a responsibility under international law to independently investigate allegations of torture made by Australian citizens being held abroad, particularly if it is in their power to have them returned to Australia. It apparently does not do so. The WikiLeaks cable makes it clear that protecting US interests is more important in Hicks' case than protecting an Australian citizen.

We must hold to account those responsible for colluding in arbitrary, unlawful, indefinite detention. We must hold to account those who are complicit in crimes against humanity even if that extends to prime ministers, ministers or ministerial advisers. We can no longer accept that those who are accused of torture should be able to investigate themselves, nor can we accept inadequate internal reviews.

We must object to our government relying on diplomatic assurances about torture or degrading treatment if it permits the transfer of Australian citizens to foreign countries, and we must press our government to block the feeding of questions and information between intelligence services around the world where the major interrogation technique is torture.

And for the future, we must insist that protocols are put in place to ensure that all information concerning instances of actual and alleged personal abuse or torture is made public.